Section 19(1) (c) of the Constitution provides that citizens have the right to campaign for their political party. The Electoral Code gives effect to the right of citizens to campaign by making provision for “free political campaigning ...”166 in South Africa. Campaigning provides an opportunity for “[p]otential voters [to] have sufficient access to information about [political] parties, their platforms and their candidates. Parties and their candidates must [also] have
159 Ibid.
160 Ibid wherein it was stated that “the right to access to information is not a right that exists in the abstract... on the contrary, the inquiry is a factual one and the person seeking the information must make out a case therefore on the papers.”
161 Institute for Democracy in South Africa and Others v African National Congress and Others 2005 (5) SA 39 (C) 10. 162 Ibid 11. 163 Ibid. 164 Ibid 12. 165 Ibid. 166 Section 1 (b).
sufficient access to the potential voters to canvass their support”.167 During the
campaigning period political “parties can present candidates and leaders to the electorate and seek to mobilise the support of the electorate by [means of for example] propaganda, organised activities and by emphasising ideological differences with other parties in competitive party systems”.168 South Africa’s “multi-party system...”169makes provision for competitiveness amongst political parties.
The media is an essential campaigning tool for political parties. The Constitution provides that “[n]ational legislation must establish an independent authority to regulate broadcasting in the public interest, and to ensure fairness and a diversity of views broadly representing South African society”.170 The legislation that gives effect to this constitutional provision is the Independent Communications Authority of South Africa Act171. This Act establishes “an independent Authority which ... [regulates] broadcasting in the public interest and ... [ensures] fairness and a diversity of views broadly representing South African society”.172
In relation to the right to equality, the following is taken into consideration: (1) whether biased broadcasting or reporting with regard to a particular political party, by the press and media and (2) whether the exclusion of unrepresented political parties from the acquisition of state funding, amounts to an infringement of the right to equality.
The Constitution provides that “[e]veryone is equal before the law and has the right to equal... benefit of the law”.173 Indeed, “incorrect or biased reporting may distort the truth, give the public an unfair perception of a candidate or the
167 P De Vos “Free and Fair campaigning” in N Steytler , J Murphy,P De Vos & M Rwelamira (eds) Free and fair Elections Kenwyn Juta 119. A.R
168 Ball Modern Politics and Government Fifth Edition (1993). The Macmillan Press Ltd, Houndmills Basingstoke Hampshire RG21 2XS London 80.
169 Section 1(d) of the Constitution. 170 Section 192 of the Constitution.
171 Independent Communication Authority of South Africa Act 2000 No. 13 of 2000, as amended by the Broadcasting Amendment Act 64 of 2002.
172 Section 2 (a) of Independent Communication Authority of South Africa Act 2000 No. 13 of 2000, as amended by the Broadcasting Amendment Act 64 of 2002.
process, and thereby undermine election integrity”.174 The media has the
power to destroy the credibility of the party if “unsubstantiated allegations of illegal or unethical activities” about the party are reported.175 This may occur if the media is biased. Also, biased reporting occurs when the media “give preferential treatment to large advertisers” such as political parties, who pay for party advertisements.176 Not all parties have sufficient funds to cover advertising costs. Biased reporting may result in a contravention of the equality clause of the Constitution because it “can undermine the principle of equal treatment for all”.177 Statutory regulations guard against incorrect or biased reporting in South Africa.178 The Electoral Act provides that “[n]o person may publish any false information with the intention of − (a) disrupting or preventing an election; (b) creating hostility or fear in order to influence the conduct or outcome of an election; or (c) influencing the conduct or outcome of an election”.179
Moreover, political parties realise “that fighting an election in any society is an expensive business, and that no matter what enthusiasm there might be for a particular cause, elections in large are won or lost in general proportion to the funds available for fighting for them”.180 The Constitution provides that “[t]o enhance multi-party democracy, national legislation must provide for the funding of political parties participating in national and provincial legislatures on an equitable and proportional basis”.181 The right to campaign for a
political party is therefore supported by the Public Funding of Represented Political Parties Act182. This Act makes provision for the allocation of funds to political parties in order to promote “active participation by individual citizens
174 "Media" retrieved from http://aceproject.org/ace-en/topics/ei/eic/eic07. 175 Ibid.
176 Ibid. 177 Ibid. 178 Ibid.
179 Section 89(2) of the Electoral Act.
180 L Fernandez “The Legal Regulation of campaign financing” in N Steytler, J Murphy, P De Vos & M Rwelamira (eds) Free and fair Elections Kenwyn Juta 99.
181 Section 236.
182 Public Funding of Represented Political Parties Act 103 of 1997. Also see “South Africa: Public Funding of Represented Political Parties Act” retrieved from http://www.eisa.org.za/WEP/soulaws6c.htmthe wherein it was stated that the “Promotion of Multi-Party Democracy Bill was introduced in 1997. This Bill was later passed as the Public Funding of Represented Political Parties Act 103 of 1997.”
in political life”.183 “Public funding for political parties is justified as one
means to advance the diversity of representation while advocating accountability, equity and the like...”.184 The Act provides that represented political parties receive benefit from the Fund “in accordance with a prescribed formula based in part, on the principle of proportionality ... and in part, on the principle of equity...”.185
No “constitutional entitlement to state funding”186 exists for unrepresented political parties in South Africa. According to the Constitution, “[u]nrepresented parties do not qualify for state funding”.187 The question is whether the constitutional exclusion of unrepresented political parties from the acquisition of state funding, contravenes the equality clause. The equality clause is applicable to all political parties because they are entitled to equal benefit of the law188:
“[An] equality challenge is ... unlikely to succeed for two reasons. First, the Public Funding of Represented Political Parties Act satisfies the requirement in [section 236 of the Constitution] that national legislation be enacted to regulate public funding of political parties. The legislation contemplated by [section 236 of the Constitution] is expressly required to provide for the funding of parties ‘participating in national and provincial legislatures’... Secondly, it could be argued that the differentiation between represented parties and unrepresented parties [creates difficulty in ascertaining] the support for unrepresented parties, and therefore the amount of state support that should be given to them”.189
The regulation of private funding received by political parties has not yet been dealt with by South African legislation. “[P]rivate domestic and foreign
183 Section 5(1)(b) (iv).
184 D Pottie “Party Finance and the Politics of Money in Southern Africa” (2003) Vol. 21 (1)
Journal of Contemporary African Studies 6.
185 Section 2(a)(i) and (ii) of the Public Funding for Represented Political Parties Act 103 of 1997.
186 J Brickhill and R Babiuch “Political Rights” in S Woolman, T Roux, M Bishop (eds)
Constitutional Law of South Africa (2006), Second Edition, Vol 3, Juta & Co Ltd, 45-36.
187 Ibid.
188 Section 9(1) of the Constitution.
189 J Brickhill and R Babiuch “Political Rights” in S Woolman, T Roux, M Bishop (eds)
donations are [therefore] largely unregulated...”.190 The options of political
parties, regarding private funding, vary. Funds are retrievable from for example sectors of society, from international contributions or from membership fee payments received by the party.191
With reference to the regulation of the private funding received from political parties, the question is whether allowing these private donations to political parties without disclosure thereof to the public, is justified in our constitutional dispensation. It could be argued that political parties, who fail to provide transparency of the funds received by them, create “scope for corruption on the part of politicians”.192
In the Institute for Democracy in South Africa Case193, IDASA together with other applicants proceeded with an application to the High Court wherein they sought “to establish the principle that political parties, or at least those who hold seats in the national, provincial and local government legislatures, are obliged ... to disclose particulars of all the substantial donations they receive, on due and proper request for those particulars made by any adult South African citizen”.194 Various political parties namely the “African National Congress (ANC), the Democratic Alliance (DA), the Inkatha Freedom Party (IFP) and the [then] New National Party (NNP)”, (hereinafter “the
190 D Pottie “Party Finance and the Politics of Money in Southern Africa” (2003) Vol. 21 (1)
Journal of Contemporary African Studies 6.
191 L Fernandez “The Legal Regulation of campaign financing” in N Steytler , J Murphy, P De Vos & M Rwelamira (eds) Free and fair Elections Kenwyn Juta 100-10. In the following article, D Pottie “Party Finance and the Politics of Money in Southern Africa” (2003) Vol. 21 (1) Journal of Contemporary African Studies 10 , it is stated that “[a] basic typology of party finance includes the following categories: [p]ublic funding: the funding may be allocated on an annual basis or election campaign related only. The method of allocation to parties may be based on level of voter support (and may include additional threshold of voter support in order to qualify), or on the number of elected seats (may also include threshold). Indirect forms of support might include: free public media access, use of public buildings for political meetings, free security for party leadership and political rallies, subsidised or free postal rates, tax subsidies. Private Funding: political parties may be subject to rules on disclosure as well as campaign spending limits”.
192 IDASA “Democracy & Party Political Funding” available at http://www.idasa.org/media/uploads/outputs/files/PARTY%20FUNDING%20COURT%20C ASE%20BRIEFING%209%20may.pdf.
193 Institute for Democracy in South Africa and Others v African National Congress and Others 2005 (5) SA 39 (C).
194 Ibid 4. See also section 32(1) of the Constitution and section 11 or section 50 of the Promotion of Access to Information Act 2 of 2000 (PAIA) as these where the legislative provisions relied on by the applicants.
Respondents”), opposed the application.195 The Respondents’ favoured the
legislative regulation of private funding of political parties as opposed to “ad
hoc litigation in the courts”.196 In contrast to the Respondents’ who sought a dismissal of the application, the ANC sought a stay of the proceeding in order to “allow the political and legislative process to follow the proper course necessary for the adoption of a national policy through legislation regulating the funding of political parties with the Republic of South Africa”.197 The heads of argument presented by counsel, on behalf of the ANC, contained an affirmation by the party that “the question of regulation and control of private donor funding of political parties should be addressed and implemented through a legislative process which will embody national policy perspectives and the balancing of the rights and interests of all persons, including the electorate, political parties and their donors”.198 The stance taken by the ANC and the other parties, during the court proceedings in the Institute for
Democracy in South Africa Case199, is of relevance when looking at the present legal regime and the lack of progress in this area of legal reform in South Africa. Furthermore, the Institute for Democracy in South Africa confirmed its decision to “[c]ontinue to work with all political parties, to support a process that ensures that an appropriate transparency and regulatory regime is designed for South Africa ...[and to monitor] the political and legislative process, [holding] political parties accountable to promises made to the Court...”.200 Despite this undertaking by the Institute for Democracy in
South Africa, their goal has not been achieved to date.
195 Institute for Democracy in South Africa and Others v African National Congress and Others 2005 (5) SA 39 (C) 4.
196 Ibid 5. 197 Ibid.
198 “Submission on Private Members Bill to Regulate Private Political Party Funding” available at http://www.pmg.org.za/files/docs/100806greyling_2.pdf.
199 Institute for Democracy in South Africa and Others v African National Congress and Others 2005 (5) SA 39 (C).
200 Briefing by IDASA “Democracy & Party Political Funding” available at http://www.idasa.org/media/uploads/outputs/files/PARTY%20FUNDING%20COURT%20C ASE%20BRIEFING%209%20may.pdf.
Bearing in mind the findings of the Institute for Democracy in South Africa
Case201, a member of parliament namely Lance Greyling who represented the
then Independent Democrats, gave a speech in support of the regulation of private funding of political parties.202 The scope of his speech dealt with the need for a “Private Members Bill to Regulate Private Political Party Funding”203 in South Africa.
In relation to campaigning, just as there is a need for fairness in funding, there is also a need for fairness in publicity. In order to regulate private funding, the right of access to information in the Constitution may need to be relied upon. Presently, the right of access to information and more particularly, the Promotion of Access to Information Act204 is being relied on by the Independent Newspapers205 in a matter pending in the Western Cape High Court.206 With respect to the right of access to information, the Constitution provides that “(1) [e]veryone has the right of access to – (a) any information held by the state; [as well as] (b) any information that is held by another person and that is required for the exercise or protection of any rights”.207 In order to exercise the right of access to information, the aggrieved person or entity (including for example the media or political parties) may resort to review by the courts under PAIA. Similarly “the primary mechanism for asserting administrative justice rights is not direct reliance on...” the constitutional provision applicable to that right ie section 33 of the Constitution, “but through review under” the Promotion of Access to Justice Act.208
201 Institute for Democracy in South Africa and Others v African National Congress and Others 2005 (5) SA 39 (C).
202 “Submission on Private Members Bill to Regulate Private Political Party Funding” available at http://www.pmg.org.za/files/docs/100806greyling_2.pdf.
203 Ibid.
204 Hereinafter “PAIA”. Promotion of Access to Information Act 2 of 2000.
205 F Schroeder “ANC opposes ‘brown envelope’ court bid” retrievable from http://www.iol.co.za/capeargus/anc-opposes-brown-envelope-court-bid-1.1098360 wherein it was stated that the court application was lodged by the Cape Argus “under the umbrella of the Independent Newspapers”.
206 F Schroeder “ANC opposes ‘brown envelope’ court bid” retrievable from http://www.iol.co.za/capeargus/anc-opposes-brown-envelope-court-bid-1.1098360.
207 Section 32(1) of the Constitution.
208 Hereinafter “PAJA”. K Klaaren and G Penfold “Just Administrative Action” in S Woolman, T Roux, M Bishop (eds) Constitutional Law of South Africa (2006), Second Edition, Vol 4, Juta
In relation to unfair campaigning, the facts giving rise to the present court application that is being opposed by the ANC relates to allegations209 pertaining to the alleged conduct of an ANC member, Ebrahim Rasool, whilst he was employed as the then former Premier of the Western Cape.210 His alleged conduct involves the payment to two journalists of the Cape Argus for the publication of favourable reports about him in order to “promote the ‘Rasool faction’ in the party’s regional branch”.211 Possibly, the favourable reports published, amounted to the “rubbishing [of] his opponents in the Western Cape ANC”.212 According to a court order, the ANC was given an opportunity “to file its opposing papers", the Independent Newspapers having approached the court for the order when no response was received by the ANC in respect of “an application made directly to” the party, in terms of PAIA.213 The purpose of the court application is “to compel the party to hand over documents214 in its possession that relate to [this so called] “brown envelope” journalism scandal”.215
The applicability of PAIA to private bodies such as political parties arises because the Independent Newspapers with its first application for the request of documents from the ANC, “may have relied on the incorrect part of the PAIA because the ANC may have contended that it had acted as a private body and not a public one”.216 The Independent Newspapers then lodged
another application in terms of PAIA, on the party, as an attempt to remedy & Co Ltd, 63-6. Also see Bato Star Fishing (Pty) Ltd v minister of environmental Affairs and
Tourism and Others 2004 (4) SA 490 (CC), 2004 (7) BCLR 687 (CC) at par 22.
209 F Schroeder “ANC opposes ‘brown envelope’ court bid” retrievable from http://www.iol.co.za/capeargus/anc-opposes-brown-envelope-court-bid-1.1098360 wherein it was stated that the allegations as stipulated above within the context of this dissertation, was made “in an affidavit by former Cape Argus journalist Ashley Smith”.
210 F Schroeder “ANC opposes ‘brown envelope’ court bid” retrievable from http://www.iol.co.za/capeargus/anc-opposes-brown-envelope-court-bid-1.1098360.
211 Ibid.
212 Sabelo Ndlangisa, “ANC ordered to hand over ‘brown envelope’ report” retrievable from http://www.citypress.co.za/SouthAfrica/News/ANC-ordered-to-hand-over-brown-envelope- report-20111129.
213 F Schroeder “ANC opposes ‘brown envelope’ court bid” retrievable from http://www.iol.co.za/capeargus/anc-opposes-brown-envelope-court-bid-1.1098360.
214 Ibid which refers to “a report on the ANC’s internal inquiry into the “brown envelopes” saga”. 215 F Schroeder “ANC opposes ‘brown envelope’ court bid” retrievable from
http://www.iol.co.za/capeargus/anc-opposes-brown-envelope-court-bid-1.1098360. 216 Ibid.
reliance on possibly an incorrect provision of PAIA. As regards the outcome of the court application, Griesel J “ordered the ANC to hand over the report of its internal inquiry into the ‘brown envelope’ scandal”.217
Also, of relevance to political parties and their campaign right is the constitutional provision that the “Bill of Rights ... binds the legislature, the executive, the judiciary and all organs of state”.218 The duties of the state with regard to party campaigning are twofold. It comprises firstly of the duty of the state “to protect the political rights of citizens” and this includes the political right of citizens to campaign.219 Secondly, a further duty of the state is to protect “parties against [any] interference in their canvassing and campaigning activities”.220 Moreover, the Electoral Code provides that “[e]very registered party and candidate must publicly state that everyone has the right to lawfully erect banners, billboards, placards and posters as well as the right to canvass support for a party or candidate”221 and that “[n]o person may unreasonably prevent any other person access to voters for the purpose of ... raising funds or canvassing support for a party or a candidate”.222
217 S Ndlangisa “ANC ordered to hand over ‘brown envelope’ report” retrievable from http://www.citypress.co.za/SouthAfrica/News/ANC-ordered-to-hand-over-brown-envelope- report-20111129. See also Leila Samodien, "Press to get access to Rasool bribes report" retrievable from htpp://www.iol.co.za/news/crime-courts/press-to-get-access-to-rasool-bribes- report-1.1189377.
218 Section 8(1) of the Constitution.
219 RM Rautenbach and EFJ Malherbe Constitutional Law (2009) Fifth Edition 131. 220 Ibid.
221 Section 4(1)(a)(iv-v). 222 Section 9(2)(a)(c).